Successfully Challenge A Will

What Evidence Is Needed to Successfully Challenge A Will In NSW?

When you are challenging a Will, the evidence that you can put before the Court will decide whether your Will Challenge is successful. The stronger the evidence you can provide to the Court, the stronger your chances of success. This evidence should include evidence of your financial position, your relationship with the deceased and any assistance (financial or otherwise) that you provided to the deceased during their lifetime.

It is also important to remember that the Court will also take into account statements from witnesses, that detail comments made by the deceased while they were alive, about who they wanted to inherit from their Estate – this is commonly referred to as statements that showed the testamentary capacity of the deceased.

A successful Will Challenge was heard by the Court in Hamilton v Moir [2013]. In this case the deceased died aged 95 years old. She was a widow with two children, Graham aged 67 and Paul aged 65. The Will Challenge was made by Vera Hamilton, who the deceased and her late husband had cared for as a foster child for about 18 months.

The deceased left a valid Will gifting her jewellery and personal belongings to her granddaughters, a third of the proceeds of her bank accounts and cash to Vera and the remainder of her Estate to be divided equally between her two sons. The value of the deceased’s Estate was approximately $885,000 with approximately $5,000 in the deceased bank account and cash in hand. The total amount in the bank account was distributed to Vera as a gesture of good faith by the deceased’s two sons.

The Court considered and agreed that Vera was an eligible person to Challenge the Will, as she had been dependent on the deceased for a period of time and part of the deceased’s household.

The Court then considered the evidence provided in support of Vera’s claim. This evidence included a DVD showing one of Vera’s children referring to the deceased as Grandma, as well as video of the deceased sponsoring Vera’s daughters confirmation. There was also evidence that Vera and the deceased maintained contact by regular visits, telephone calls and letters.

The Court then considered whether Vera was in need of a larger provision from the deceased’s Estate, including her financial circumstances, age and health as well as those of Vera’s husband.

The Court decided that Vera should receive a lump sum from the deceased’s Estate and after considering the circumstances surrounding Vera’s relationship with the deceased, made an order for Vera to receive a lump sum of $80,000 from the deceased Estate.

If you are looking to challenge a Will, seek expert legal advice first!

Graeme Heckenberg has been a practicing lawyer for over 25 years and  is an expert in his field of Estate Litigation.  He is the principal of Sydney Wills Lawyers in Macquarie Street, Sydney CBD.

For advice on your Will challenge, call the Sydney Wills Lawyers today and ask about their “No Win No Fee” policy – 9221 2779 or email info@hecken.com.au